AUDITOR SURVIVES 2 INQUIRIES

No disciplinary action taken against Luna, aide in whistle-blower case

San Diego 
Two separate investigations into the conduct of City Auditor Eduardo Luna and his top lieutenant have concluded without disciplinary action although Luna has been ordered to implement unspecified changes in his office.

The city’s Audit Committee, headed by City Councilman Kevin Faulconer, finished its review in closed session Monday but took no reportable action under the state’s open-government law because performance evaluations are confidential.

In response to a Public Records Act request, the city also released 111 pages of redacted findings produced by the two law firms hired to investigate Luna.

The matters under review included whether Luna and his second-in-command, Assistant City Auditor Chris Constantin, tried to cover up a workplace injury and whether their audit of the city’s building permit process amounted to personal attacks on Development Services Director Kelly Broughton.

The first investigation by the Liebert Cassidy Whitmore law firm into those issues exonerated Luna and Constantin but documented a poor work environment in the office that resulted in low morale among staffers.

A second probe by the Solomon Ward law firm looked into whether Luna and Constantin retaliated against employees who filed the original complaints. The firm concluded that their attempts to discover the source was a violation of the city’s whistle-blower protection regulations; they tried to delegitimize the initial investigation by saying it was illegal; and they failed to maintain confidentiality during the proceedings.

The probe, however, found “insufficient evidence” that Luna and Constantin retaliated against employees.

“Rather than recognize these complaints as sincere, and agree to an outside, objective investigation of all issues with the OCA (Office of the City Auditor), Mr. Luna and Mr. Constantin speculated about the sources and improper motivation of the complaints, became incorrectly convinced that they came from outside of the OCA, challenged the authority of the outside investigator, and — believing those efforts to have succeeded — sought to discover who raised the complaints and why,” the report concluded. “Ironically, this is the very type of conduct that OCA investigators identify as ‘red flags’: a lack of structure and organized control in the department, ‘going around and around’ in an effort to hinder or delay an investigation and general ‘push back.’ ”

Luna and Constantin have denied the original accusations since they were first reported by U-T San Diego in October. Their attorney, former City Attorney Michael Aguirre, said that because the first investigation exonerated his clients the findings of the second are irrelevant. He also objected to the release of the investigative files.

“Why the city attorney would release reports in which the individuals were found not to have done something substantive while there’s pending litigation seems to be contrary to the city’s interest and to the interests of the people (City Attorney Jan) Goldsmith is supposed to be representing, which is the City Auditor’s Office and the Audit Committee,” Aguirre said. “He’s basically usurping the authority of the auditor and of the Audit Committee and deciding on his own what to release.”

A former auditor employee, Edward Moreno, identified himself as the whistle-blower in a lawsuit he filed in December against the city. He accused city officials of harassment about his sexual orientation, retaliating against him for filing complaints and wrongful termination.

Faulconer issued the following statement Monday: “The city auditor and his staff have produced excellent results to reduce government waste and improve efficiencies, but there must be internal improvement within the office. The city auditor agreed and was directed by the committee to immediately take action. The Audit Committee expects the city auditor to successfully implement improvements in a timely fashion and appreciates his cooperation going forward.”

The city refused to release most details of the investigations for the better part of a year. Meanwhile, at least $70,000 in taxpayer dollars were spent on the probes as of October. The city didn’t provide an updated figure Monday, but Voice of San Diego reported the tally has topped $120,000.

Luna and Constantin had been under investigation following an April 2012 incident in which one of their employees broke an arm while using a recreational balancing board in the office. That sparked an initial probe by the state Occupational Safety and Health Standards Board which found no wrongdoing by the city.

Later, employees complained to human resources that they were told by Luna and Constantin to mislead or withhold information from investigators so the office wouldn’t look bad.

The U-T had previously reported on internal emails that showed employees accusing Luna and Constantin of questioning several staff members about who complained and dissuading others from cooperating with offers of raises or threats of retaliation.

The documents released Monday didn’t introduce any new allegations but did shed light on the investigation results.

Luna, who has an annual salary of $168,000, was hired by former Mayor Jerry Sanders in 2007. Constantin recently resigned from the city to take the finance director job in Chico, according to the Chico Enterprise-Record.